Federal Court Pretrial Document

UNITED STATES DISTRICT COURT
MIDDLE DISTRICT OF FLORIDA
OCALA DIVISION

CHRISTOPHER HOWARD and
JEFFREY GREENSTONE,
Case No.: 5:15-cv-200-Oc-39PRL
Plaintiff,
v.

SECOND CHANCE JAI ALAI LLC,
a Florida Corporation d/b/a
OCALA POKER & JAI-ALAI,
Fictitiously,

    Defendant.

______________________________/

PRETRIAL STATEMENT

Plaintiffs, Christopher Howard and Jeffrey Greenstone, and Defendant, Second Chance Jai Alai, LLC file this Joint Pretrial Statement as follows: 

(1) the basis of federal jurisdiction;

Jurisdiction is conferred on this Court by 29 U.S.C. Sec. 216(b).

(2) a concise statement of the nature of the action;

Plaintiffs allege they were improperly included in Defendant’s invalid Tip Pool, in violation of the Fair Labor Standards Act. Defendant denies the Tip Pool was invalid and that the Plaintiffs were improperly included.

(3) a brief, general statement of each party’s case;

Plaintiff: Plaintiffs worked as poker dealers for Defendant at its Ocala Poker & Jai-Alai establishment. Plaintiffs bring this case pursuant to the Fair Labor Standards Act (FLSA), and allege that Defendant created an invalid tip pool by sharing Plaintiffs’ tips with ineligible employees and filing to provide proper notice of the required pool.

Defendant: The Defendant asserts that the tip pool was valid in all respects. Additionally, Defendant asserts Plaintiffs’ damages claims are barred by the provisions of 29 U.S.C. 260, because the acts or omissions complained of were done in good faith and with reasonable grounds for believing that the acts or omissions were not in violation of the FLSA. Additionally, Defendant claims that Plaintiffs’ claims are barred by the provisions of Section 29, U.S.C. 259, because all actions taken in connection with the Plaintiffs compensation were done in good faith and in conformity with and in reliance upon written administrative regulations, orders, rulings, approvals, interpretations, and written and unwritten administrative practices or enforcement policies of the Administrator of the Wage and Hour Division of the United States Department of Labor.

(4) a list of all exhibits and Rule 5.04 exhibit substitutes to be offered at trial with notation of all objections thereto;

For Plaintiff, See Exhibit A.

For Defendant, See Exhibit B.

(5) a list of all witnesses who may be called at trial;

For Plaintiff:

The Plaintiffs, Christopher Howard and Jeffrey Greenstone
c/o the Plaintiff

Jason Bendure
312 SW 26TH DRIVE, APT. 4; GAINESVILLE, FL 32608

Brian Matthews
c/o the Defendant

Corporate representative of the Defendant
c/o the Defendant

Those persons listed by Defendant

For Defendant:

Joseph James Coffey.
c/o Patrick G. Gilligan, Esquire
Gilligan, Gooding & Franjola, P.A.
1531 SE 36th Avenue
Ocala, Florida 34471

Brian Matthews, President
c/o Second Chance Jai-Alai, LLC;
Second Chance Jai-Alai, LLC
d/b/a Ocala Poker & Jai-Alai
PO Box 580
Orange Lake, FL 32681

Marsha Kelso, Office Manager and records custodian of employee records.
c/o Second Chance Jai-Alai, LLC;
Second Chance Jai-Alai, LLC
d/b/a Ocala Poker & Jai-Alai
PO Box 580
Orange Lake, FL 32681

Phil Faso. Employee \ Poker Room Manager
Second Chance Jai-Alai, LLC
d/b/a Ocala Poker & Jai-Alai
PO Box 580
Orange Lake, FL 32681

Pat Garrity, Employee/ Dealer / Poker Room Manager
Second Chance Jai-Alai, LLC
d/b/a Ocala Poker & Jai-Alai
PO Box 580
Orange Lake, FL 32681

Vicki Pernek, Vault Manager
Second Chance Jai-Alai, LLC
d/b/a Ocala Poker & Jai-Alai
PO Box 580
Orange Lake, FL 32681

Jason Bendure
3124 SW 26th Drive, Apt 3
Gainesville, FL 32601

Armando Villegas, Employee and security guard
c/o Second Chance Jai-Alai, LLC;
Second Chance Jai-Alai, LLC
d/b/a Ocala Poker & Jai-Alai
PO Box 580
Orange Lake, FL 32681
Plaintiffs’ objection: This witness has no relevant information about this case.

Zachary A. Howard, former employee
4127 NW 34 Place
Gainesville, FL 32606
Plaintiffs’ objection: This witness has no relevant information about this case.

Kathleen Danielson
503 Lynne Haven Drive Apt 13
Hagerstown, MD

(6) a list of all expert witnesses including, as to each such witness, a statement of the subject matter and a summary of the substance of his or her testimony;

None.

(7) in cases in which any party claims money damages, a statement of the elements of each such claim and the amount being sought with respect to each such element;

Exhibit C is a composite of the tips taken by Defendant. For Mr. Howard, after liquidation, it amounts to $10,234. For Mr. Greenstone, after liquidation, it amounts to $29,000.00.

Exhibit D is a calculation of the differences in the minimum wages paid (the reduced tip pool wage) and the then current federal minimum wage. For Mr. Howard, after liquidation, it amounts to $16,197.91. For Mr. Greenstone, it amounts to $23,717.42.

Plus, attorney’s fees and costs are sought by both Plaintiffs.

(8) a list of all depositions to be offered in evidence at trial (as distinguished from possible use for impeachment), including a designation of the pages and lines to be offered from each deposition;

Plaintiff: Brian Matthews Deposition of May 31, 2012, pages 1-4, 53, 57 and 60. Defendant objects to this.

Plaintiff: Entire deposition of Jason Bendure, should he be unavailable for trial.

Defendant: Depositions of Christopher Howard and Jeffrey Greenstone taken in this case. Deposition of Jason Bendure, should he be unavailable for trial.

(9) a concise statement of those facts which are admitted and will require no proof at trial, together with any reservations directed to such admissions;

  1. That Plaintiffs, former employees of Defendant, bring this action to recover compensation and other relief under the Fair Labor Standards Act, as amended (the “FLSA”), 29 U.S.C. Sec. 201 et. Seq.
  2. Jurisdiction is conferred on this Court by 29 U.S.C. Sec. 216(b).
  3. That at all times material hereto, Plaintiffs were citizens and residents of this judicial district, sui juris and otherwise within the jurisdiction of this Court.
    1. That, at all times material hereto, Defendant was the employer of the Plaintiffs, were conducting business in this judicial district and were an “employer” under the FLSA.

(10) a concise statement of applicable principles of law on which there is agreement;

None.

(11) a concise statement of those issues of fact which remain to be litigated (without incorporation by reference to prior pleadings and memoranda);

Liability of Defendant, if any. The amount Plaintiff’s damages, including liquidated damages, attorneys’ fees, costs and interest and whether Defendant’s action were willful if liability is determined as to Defendant.

(12) a concise statement of those issues of law which remain for determination by the Court (without incorporation by reference to prior pleadings or memoranda);

Whether Defendant’s Tip Pool is invalid as per the Fair Labor Standards Act, including but not limited to whether Defendant provided proper notice to Plaintiffs and/or whether invalid participants in the pool invalidated the pool.

(13) a concise statement of any disagreement as to the application of the Federal Rules of Evidence or the Federal Rules of Civil Procedure;

None.

(14) a list of all motions or other matters which require action by the Court; and

Motion for reconsideration as to summary judgment Defendant claims is based on recent U.S. Supreme Court decision.

(15) the signatures of counsel for all parties.

Dated: July 13, 2016

/s/ Michael Massey


Michael Massey
Florida Bar No. 153680
Massey & Duffy
855 E. Univ. Ave.
Gainesville, FL 32601
Counsel for Plaintiffs